Supreme Court: European Regulations did not guarantee fair procedures

About this case:

• Judgment:
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Background

On the 2nd of December 2014, sea fishery protection officers (“SFPOs”) – officers of the Sea Fisheries Protection Authority (SFPA) boarded the Anders Neel – a vessel owned by the respondent, Crayden Fishing Company Limited – and carried out an inspection.

The SFPOs reported that:

(i) The Master of the vessel had under-recorded whiting by 126.8% in that there was a more than 18,000 kg discrepancy between the operational estimate and the electronic log book and the landing declaration;

(ii) A large quantity of unboxed fish was found concealed in a compartment behind shuttering in the fish hold. When the SFPOs asked the Master if this fish was additional to the quantities he had recorded in his electronic log book, he replied that it was. The unboxed fish when off loaded was boxed by the Master and his crew and was found to equate to approximately 152 boxes of whiting. Using an average box weight, this was equivalent to 6,829.36 kg of whiting;

(iii) The Master had exceeded the whiting quota for 2014 by 12,336.12 kg between the 1st and 2nd of December 2014.

These matters if established would constitute a breach of the regime established under the Common Fisheries Policy particularly in relation to “illegal unreported and unregulated fishing” (IUU fishing) and could be the subject of criminal prosecution of the Master of the vessel.

Significantly for present purposes, they could also give rise to a procedure for the allocation of points to the licence held in respect of the vessel, under domestic provisions implementing in Irish law, provisions of Council Regulation (EC) 1224/2009, establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy, (“The Control Regulation”).

Crayden was subsequently furnished with a copy of the inspection report, and was informed in January 2015 an SFPA panel had determined that the infringement was serious in nature.

Crayden was notified that 12 points were proposed to be assigned in respect of the infringement; and advised that it could register an appeal by writing to an appeals officer within 21 days of the receipt of the notice, pursuant to the provisions of the European (Common Fisheries Policy) (Point System) Regulations 2014.

Crayden duly lodged an appeal but before the hearing of that appeal it commenced the present proceedings.

The present case and O’Sullivan

The essential contention made by Crayden was that a claim had crystallised at that point, and would not be altered by awaiting the outcome of the appeal process.

It was argued that the process before the determination panel of the SFPA was required to be carried out in accordance with fair procedures, and that in particular, Crayden had been given no opportunity to make representations on its own behalf or test or challenge the evidence produced by the SFPOs and furthermore reasons had not been given for the decision.

challenged the assumption that fair procedures were required in respect of the proceedings of the determination panel, taken in isolation. It was argued that the question of fair procedures depended upon all the facts and circumstances of the case.

“It was argued that since the 2014 Regulations provided that nothing could happen to Crayden (or any other licensee) and in particular that no points could be allocated as a result of the determination panel proceedings unless the licensee chose not to appeal, or if the appeal was withdrawn or dismissed, then the proceedings should properly be viewed as part of a single unitary process. If so, fair procedures were provided in relation to the decision of the appeals officer. Analysed in this way, fair procedures were provided before any points were attached to the licence in fact, and before any adverse consequence was suffered by the licence holder”.

In the High Court, it was concluded that the proceedings before the determination panel did require fair procedures and at a minimum the right to make representations and to have reasons for the decision. As such, the High Court made an order of certiorari quashing the determination of panel.

In proceedings heard at the same time as the present case – O’Sullivan v Sea Fisheries Protection Authority & ors – the European (Common Fisheries Policy) (Point System) Regulations 2014 (SI 3 of 2014), were declared invalid. Accordingly, Justice O’Donnell stated that the present judgment should be read together with the companion case of O’Sullivan for a full account of the legal issues arising.

In the immediate aftermath of the decisions of the High Court in O’Sullivan and in this case, the Minister for Agriculture, Food and the Marine, introduced the European Union (Common Fisheries Policy) (Point System) Regulations 2016 (SI 125 of 2016)

which among other things revoked the 2014 Regulations in their entirety.

The High Court also observed in passing that it appeared that the decision of the determination panel was also flawed because it had not considered the economic circumstances of the operator as provided for by Article 90 of the Control Regulations: Council Regulation (EC No. 1224 of 2009) of the 20th of November 2009.

The following issues were considered in the Supreme Court:

(i) Crayden’s contention that the appeal is moot and should not be heard;

(ii) Crayden’s argument which succeeded in the High Court that fair procedures were required in the proceedings of the determination panel;

(iii) The State authorities’ contention that proceedings are premature or that relief should be refused on the grounds that there is an adequate alternative remedy;

(iv) The State authorities’ contention that there is a separate and distinct error in the High Court judgment where it was determined that the economic circumstances of the operator must be taken into account.

Dismissing the appeal by the State Authorities, Justice O’Donnell was satisfied that “the frailty of the procedure adopted in this case lay in the overall procedure” in the 2014 regulations, and stated that it was “not necessary to substitute any other order in this case”.

The parties were given two weeks to make submissions regarding the orders to be made in both the present case and in O’Sullivan.